John William Nelson's Favorite Techdirt Posts Of The Week

from the a-few-of-my-favorite-things dept

This last week saw me declining a big job on ethical grounds, getting stitched up after slicing open my finger cutting onions, having a check not go through and thus leading my bank to mishandle funds, and being asked by Mike Masnick if I wanted to write the favorite posts post for Techdirt this week.

This, dear readers, is the highlight of my week.

I'm a lawyer, so you might see a theme running through my picks. In the interest of introduction brevity, let's get on with it:

Who watches the watchers?

Two posts dealt with recording police. The first dealt with the law behind it (hint: First Amendment) and the second dealt with one reason why the law is the correct public policy.

The court in Illinois gets it right—the public watches the watchers. The government works for us in the U.S., and public officials performing public acts in the furtherance of the public duties mandated by their public office (that means you, policemen) cannot rely on privacy laws to prevent others from recording or otherwise reporting them. The logic of this isn't hard. The only argument against this is that public officers (police, politicians, bureaucrats, etc) should be allowed to hide what they're doing.

The second post about citizens recording police, and how it showed they lied, is the argument against allowing public officers to hide their acts. Policemen are people too; some of them lie, cheat, and steal, just like some of us. Huzzah for reason.

Their lawyers allowed this?

Sometimes I read things with my lawyer glasses and ask the above question. Then I remember how often clients don't ask their lawyers first, but only come to us when they've painted themselves in a corner. I believe that is what BART did here:

This post shows how easy it can be for government entities to violate free speech rights in the digital age. All they have to do is flip a switch in the BART stations, or in Libya, or Egypt, or Tunisia. In this case, government blocked speech before it happened, leaving no chance of a due process determination. (And likely not consulting their lawyers, who should have told them, "I had a hypothetical like this in my Con Law class; the answer is no.") This leads to the next post about free speech, one where the government is trying to shut a speaker down without due process.

"Smokey, this is not 'Nam. There are rules."

There are laws, there are rules, and there are procedures. The laws outline policy, the rules attempt to implement, and the procedures are the tools used to do so. Generally, laws trump rules and rules trump procedure. The Government in the Rojadirecta case appears to believe procedure should trump rules, and rules should trump laws. This post outlines the absurdity:

The thing is, courts sometimes value their procedures over logical interpretations of rules and law. I hope the 2nd Circuit doesn't do that here, and I hope the Government gets slammed for their over-reach. This isn't rocket science folks, it's just free speech.

It's smokey in them there woods

My second reaction, when my soulless lawyer instincts kick in, is to say, "Well, maybe." This post follows the First Amendment trend, and it highlights the ways the First Amendment protects all of us as well as some of the ways government policies chip away at it.

From the British take on free speech, albeit from an American

Some people think free speech can be a problem. This post discusses arguments by a lawyer who takes a very British view on anonymous free speech on the internet:

The problem is that he's not British. His arguments run right up against the First Amendment. The approach he suggests would be a restraint on speech, and that's just not the American way. (Although it is the British way; he may want to investigate moving abroad.)

More on the British and speech

I studied a year in England, and I followed the drama of the hacking scandal as it unfolded. I still chat regularly with friends in the U.K., like my mentor Daithí Mac Síthigh, who is an expert on these things, about its implications.

While you might think I'd be all in against the actions of the police in this situation, I do recognize the tension between free speech (and protecting sources) and solving crimes. Nevertheless, I believe free speech trumps here. This post looks at the latest in the big Murdoch boondoggle.

How do I know if a violate a secret law?

Or, more importantly, how do I know when you violate that secret law? The next of my favorite post looks at the efforts of a couple of Senators to expose the dark, dirty, secrets of the post-9/11 Department of Justice to a bit of sunlight.

I would vote for these Senators if they represented my state. They're actually doing their job, instead of perpetuating a surveillance state that violates the Fourth Amendment. Remember, those who would choose safety over freedom deserve neither.

Righthaven—saving us from copyright trolls without even trying

Righthaven has been much in the news. I've had to deal with copyright demands on folks with no money in pro bono cases. I'm not a fan of the shakedown efforts of these business models. Two posts outline the continuing fall of the one copyright troll:

The first post looks at the ways in which claimants against Righthaven plan to go after the folks behind the scheme. I hope they do—it will be a deterrent against entering into these kinds of sham schemes in the future. The second looks at the ways claimants against Righthaven are trying to get the money they're owed. Ironically, these types of tools are tools many copyright trolls and debt collectors use.

Once again, you can't copyright an idea

This article provides visual aides as to why this is so. They say a picture is worth a thousand words. If so, how many words is a video of thousands of moving pictures, much less three of those videos, worth?

There are many takeaways from this story. First, hire an attorney if you get sued. Second, hire an attorney if someone is trying to collect a crazy debt against you. Third, the court system can be abused by folks to make examples of others. I am disappointed in Craigslist if the facts of this story are true.

Authors, publishers, and technological disruption

This post looks at ways new technology is granting artists—here it is a book author—greater power over the sale and distribution of their work:

My wife is a librarian and I hear a lot of scuttlebutt about the industry. Authors hate when publishers mischaracterize books or put terrible covers on them. The ability to self-publish, just like the ability to self-record, empowers artists and democratizes art much in the same way the printing press democratized the recording and spread of ideas.

The new normal in a technologically disrupted world

Following up on tech disruption, this post looks at how companies and artists can still make money by focusing on the fundamentals of sales, rather than adhering slavishly to broken business models:

Global patent regimes violate human rights, and this is why

I was chided in an international IP law class in England for arguing against my professor's views that forcing western patent regimes on developing countries benefit those countries. My classmates, however, were primarily from India and China. They agreed with me, and this post touches on the human rights issues involved:

Reader Comments

Hire-a-pirate is just one initiative that focuses on reducing cost to students so they can actually afford to learn something, although I would prefer to see schools adopting and helping create new open educational books which would come without risk. But since schools are not that honest at times and some do take bribes when they choose a book, this one initiative may be just the thing to counteract that state of affairs.http://torrentfreak.com/pirate-service-makes-textbook-rentals-last-forever-110923/

Re Puerto 80, is a federal law being challenged (which one(s)?), is something done by a federal actor being challenged (which actor(s) specifically?), or are both a law and an action by a federal actor being challenged?

At times it appears as if the challenge is "facial", and at other times "as applied".

Re:

The U.S. Government took possession of Rojadirecta domain names. This was done without a hearing where the government had to show cause and Puerto 80 had an opportunity to challenge it. It was done under federal law allowing the taking of property being used in an alleged crime. Here, there was sincere question about the procedures used by the government, and signed off by the court, in allowing this.

But there is more to it than the procedure. Rojadirecta argues that not only were procedure and rules violated, but the procedure and rules as applied to these types of cases violate the First Amendment (the law). It is one thing to take the property of an alleged drug dealer pending the outcome of his case, and quite another to take possession of the virtual printing press allowing the defendant to exercise their free speech rights.

So to answer your question, there is both a facial and an as applied challenge being claimed here. And both the law and the actions of a federal actor are being challenged.

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I think you know though that the government didn't seize the virtual printing press, because Rojo continues to publish and distribute on other domain names. At best, the government seized a corner news box used to distribute material that appears on it's face to be against US law, at the least to the point that a judge signed off on it.

Rojo still has their virtual printing press and supply of paper. You just can no longer get their "paper" on that virtual street corner, pending the outcome of the trial.

They are already losing trying to claim substantial harm. Their other first amendment claims seem very flimsy, and don't seem to acknowledge that Rojo continues to "publish" to this day. They act as if they were stopped from something, which just doesn't appear to be the case.

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I think you know though that the government didn't seize the virtual printing press, because Rojo continues to publish and distribute on other domain names.

Ah but then you see using your analogy the USG actually DID seize the 'implement to enable content to be world viewable' ie: The Printing press.

Just because Rojo now has another DNS (Printing Press) in another jurisdiction unable to be seized by the USG, does not have any relevance whatsoever since at the instance of the seizure they only had the one DNS serving content that was actually seized. So no it was not a corner news box, it was the ONLY corner news box.

Their other first amendment claims seem very flimsy, and don't seem to acknowledge that Rojo continues to "publish" to this day.
Again irrelevant. What is happening Now has no bearing on what happened at the time of seizure.

They act as if they were stopped from something, which just doesn't appear to be the case.
Their property was seized, they had to acquire new property elsewhere to do what they were LEGALLY able to do (and yes it is legal since it has not been declared Illegal).

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A question John in regards to the Puerto 80 situation.

The USG took possession of the property (Rojadirecta registered domain name controlled within USA) which is the whole dispute at the moment with the argument mostly focused on due process, First Amendment, and undue influence(?).

Normally with seizure of property for the purpose of stating it is allegedly used, or could be used for criminal purposes, that property is then kept in a static pristine state (in this instance it is a set of DNS record[s] and not tangible content) until at such time it is deemed to actually be used for such purpose and then given to the state to do with what they will. Normally either sold at auction or other means to benefit/educate the public.

My question is, why is the USG not leaving it in its pristine state and is actually using the property for its own political and educational ends. Since redirecting and changing the DNS to point to somewhere else that serves govt propoganda is absolutely usage.

Wouldn't this equate to seizure under emminent domain?

Or would it be better for Puerto not to mention that and then just go the route of rei vindicatio (detinue/replevin) if their current action succeeds?

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The answer is that the Manhattan US Attorney's office (I think it's them) is doing something they've never really done before (at least on this scale).

So this is a first-time kind of thing. They're very likely screwing at least something up procedurally, but they're pushing those bounds because it benefits their cause (trying to shut down pirates) and they have an argument for doing so (even if some of us view it as a poor argument).

As for eminent domain, there have been some eminent domain cases brought by third parties to arrests where the arrestee was carrying cash, the cops classified the cash as property seized in a drug arrest, but the third parties owned the cash.

In short, these kinds of seizures are controversial and problematic, and the Roja case throws in the added confusion of domain names versus tangible property.

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Though not absolutely totally familiar with your Free Speech system being Australian (Though from readings its likely that the average citizen in the USA ism't either) wouldn't the so called 'illegal activities' have to be either self evident on their face value by any reasonable person to be illegal, or proven by an appropriate authority (court/tribunal/etc) to be illegal, before the inherent right of Free Speech could be trumped?

Or is it just on the say so and whim of whomever is in charge at the time allowing procedural fairness to be disposed of?

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you do know even convicted criminals have the right to free expression right? There is no such thing as 'illegal' speech, unless you're in Iran or China. There are illegal activities that may happen while someone is using free speech, but non of that means the speech itself is 'illegal'. The government "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech"
This makes the seizure of Rojadirecta's domain illegal

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The states and Canada do have 'hate speech' laws; The states mainly restricts those laws to allowing private entities, (mostly universities), to enforce speech codes, But in Canada, advocating the demise of an entire people, for example, can get you locked up for a long time if law enforcement so chooses. I don't know of any instance of that law actually being used, though.

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you do know even convicted criminals have the right to free expression right? There is no such thing as 'illegal' speech, unless you're in Iran or China. There are illegal activities that may happen while someone is using free speech, but non of that means the speech itself is 'illegal'. The government "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech"
This makes the seizure of Rojadirecta's domain illegal

Re:

Now let me sum up your post:

I am against lawyers that keep defending people who are obviously criminals except when they are defending me.

I am against fair trial, I am against due diligence and the respect for the letter of the law when it suits me, people should have their belongings seized because I want them to stop doing something I disagree with and only my views are important.

I believe American law supersedes other countries laws and judicial system but only for others because I wouldn't want to have my property seized in foreign lands because I posted a photo on Facebook that was unlawful in some part of the world.

Yes I am a dishonest prick that believes in all those things are just and fair and I would go to great lengths to say so.

Re:

I'm so hopping that some other country seizes the assets of American studios, labels or publishers for something that is against their laws and for which they have no other recourse but to seize the assets of those companies on their soil.

I know Hugo Chaves would just love the opportunity although he already seized a lot, but he didn't touch media companies yet, maybe this will be a new global trend, lets seize everything from others that we don't agree with, that will work wonders to everybody involved.

Re:

Yes and no. Free speech has its limits, however free speech is recognized as incredibly important in U.S. law. We have this thing called a Constitution, and this document trumps everything else.

So when a law, or its application, comes into conflict with free speech then free speech should tend to win. As I stated in the portion about the UK police attempts to uncover journalist sources, there is a tension.

Policy-wise, I think protecting journalist sources is important and should trump free speech here. This isn't a violent crime we're talking about. Even so, this will ultimately come down to the decisions of the journalists as to what constitutes the line to cross in divulging sources. (Here it is more likely to be worth fighting than, say, in a murder case.) In short, it is a journalistic ethics consideration.

The legal protections journalists can use, however, vary greatly between the U.S. and the U.K. While the US protections are informed by the First Amendment, it would be a mistake to say UK protections of journalists in these cases is weaker. It is just different.

More importantly, there are no bright-line rules for these cases in either U.S. or U.K. law. Ultimately, sincere journalists have to be prepared and willing to sit in jail for a time. (And many are; journalistic history in both nations have numerous stories of this occurring.)

Ultimately, though, since you're less interested in discussing issues and their nuances, but wish to sum up everything into one sentence, I'll do so here:

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The same could be said of you: not a single pertinent criticism of the post, but consistent attacking of the poster. Says a lot about you, really - mostly that you can't even debate this in a civil manner.

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What, you didn't catch the criticism? Read all of his points, almost all of them come back to the simple "first amendment trumps everything, even illegal behaviours". I don't have to rip each point apart and come to the same conclusion, it is pretty simple.

So here's a hint: Sometimes it takes only a few words to say a lot. Next time read the words and what they mean.

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"...first amendment trumps everything, even illegal behaviours"

To reiterate a comment from above, if it's protected by the First Amendment, it's not illegal behaviour. At least not until a court has determined so through a trial. Your obvious target is the Rojadirecta case, and that has yet to happen on that case.

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JMT, you sort of get it backwards. What most people (including this lawyer) appear to be doing is hoping like hell that the first amendment will save them from what is otherwise bad acts.

It would be a horrible precedent for something like Rojo to be able to hide behind the first amendment, while the site is clearly dedicated to supporting illegal activities. Would we tolerate a chat board that told people who was out of town, what their address is, which window to break in, provided them an inventory of the house and hooked them up with fences to take the merchandise? Each of those items alone might be some sort of free speech, but it is clearly supporting criminal activity (aiding and abetting). Should the first amendment trump it?

Would you extend that to any crime of "conspiracy to commit", where anyone who did the planning and set up the crime would be free to go, because their discussions are "free speech"?

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"It would be a horrible precedent for something like Rojo to be able to hide behind the first amendment, while the site is clearly dedicated to supporting illegal activities."

... No it would not. You haven't explained clearly why Roja is a site dedicated to illegal activites, merely attacked the poster. A live stream of a futbol match doesn't hurt someone. So what exactly is Roja's "crime"? Even the government has stated that Roja is not guilty of any crimes, but their site is utilized to commit them? How does that follow?

" Would we tolerate a chat board that told people who was out of town, what their address is, which window to break in, provided them an inventory of the house and hooked them up with fences to take the merchandise? "

"Each of those items alone might be some sort of free speech, but it is clearly supporting criminal activity (aiding and abetting). Should the first amendment trump it?"

Oh by all means. Since the government doesn't like Justin.tv, Youtube, Rapidshare, Megaupload, Google Music, OCRemix, and the myriad of other portals because someone, somewhere is uploading "illegal" (hint: let's say unauthorized from now on) material that a copyright holder doesn't like.

I guess the statutory clause of copyright trumps the natural rights of the people it's supposed to protect doesn't it?

"Would you extend that to any crime of "conspiracy to commit", where anyone who did the planning and set up the crime would be free to go, because their discussions are "free speech"?"

Please define conspiracy. Not only have people sat here and called the likes of me and a few other regulars conspiracy theorists when appropriate to try to dismiss our claims, but I truly believe the conspiracy laws are beyond vague when dealing with the US government.

I'm currently checking up on "conspiracies" as defined by US law. So please, by all means... How is Roja a conspiracy when no one had heard of it (in the US) until the domain seizure?

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Feeding trolls who are unwilling to engage in meaningful debate tends to serve nothing but the bank accounts of the doctors you visit for high blood pressure.

But let me help you address the anonymous coward's straw man arguments. The coward states:

"It would be a horrible precedent for something like Rojo to be able to hide behind the first amendment, while the site is clearly dedicated to supporting illegal activities."

Yes, it would. However, no trial has found that Rojadirecta is clearly dedicated to supporting illegal activities.

It would be even worse precedent for the government to take away your stuff without the citizen benefitting from a hearing to determine whether it should be taken away. After all, we fought this little think called the American Revolution over this idea.

Again, you also use the analogy of a message board used by burglars and those who case for burglars. Again, it would be wrong to let folks using the board in the manner to get away with it because of a First Amendment argument. I don't dispute that, nor do I ever argue for such an absurd result.

Yet, anonymous coward believes I do feel this way. Probably because anonymous coward is unwilling to debate reasonable issues in a nuanced manner but would, rather, paint the opposition as unreasonable. (Through what is called a straw man argument.)

But in his example there is still the implied assumption that there would be a trial to find these people had indeed acted in concert to case out potential targets and, thereby, aided and abetted burglars. You know, the whole guilty until proven innocent thing.

This has not occurred in the Rojadirecta case as of yet. The government took the domain names without a chance for hearing, without notice, and without a conviction of criminal acts by Roja. Perhaps the government can get a conviction, but the simple argument is that this should be required before we deprive folks of their property.

Yet the anonymous coward refuses to address this. Likely because the anonymous coward is indeed a coward.

So let's not feed the cowardly troll. The points are there, and the anonymous coward cannot bring out anything more.

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You mean like your position is the easy way out that everybody not found guilty of anything, without warning, due process can have their property seized and should not be able to contest anything just because you want it to be so?

So couch potato, pencil pusher that lives under a bridge, how did he inhibit your first amendment rights?

Re:

Corrupt so-called Human Rights workers.

Dear John,

I just posted this to your mentor. Do you have an opinion on who is watching the Human Rights watchers in Ireland?

Dear Daithi,

PILA and FLAC and the so-called enlightened lawyers in Ireland are taking all Human Rights workers in the UK and the world for a ride. They cover up the corruption of SIPTU, which as you well know was once great Trade Union, founded by Jim Larkin, then named ITGWU.
No solicitor in Dublin or Human Rights body will give me a solicitor to sue Jack O’Connor, the president of SIPTU for covering up corruption. I have documentary proof that the Belfast Union officials were corrupted by the employers and persecuted, sacked and drove to their deaths Belfast Dockers by ordering them to discharge Asbestos without protection to save the employers money. See video on http://www.justicefordockers.com
At a Transparency International conference held to publicise their whistle blowers initiative, I questioned the chairman, Fintan O’Toole, and outlined that I was a whistle blower on a trade union whose officials had been corrupted and were in the pay of employers – and who had sacked me because I wouldn’t discharge Asbestos without protection. [O'Toole knew all of this as I've been writing to him at The Irish Times for years]. I then asked O’Toole on why neither he nor his paper will report on Belfast Dockers dying from Asbestosis? After a period of silence he muttered something about the Defamation Laws and called for the next speaker. Many whistle blowers weren’t happy with his answers and his attempt to shut me up, told him so but he refused to discuss it further.
John Davitt of TI intervened and stated that “this was neither the time nor the place to raise this, but that I could speak to him later over a coffee”. I strongly disagreed as did the audience of whistle-blowers but to no avail. However over the course of the meeting which was held in Boswell’s Hotell, Davitt asked many times for people to moderate their language as the event was being recorded and would be posted on their website. However, my questioning of O’Toole, the whistle-blowers disatsifaction and Davitt’s cronyism towards O’Toole was cut from the recording that was posted. SOME TRANSPARENCY.
Two days later at a conference on changes to the Defamation Laws, and attended by the creame de la creame of Dublin legal minds which had High Court Judge Peter Kelly hosting the Q&A session, I was the first speaker. You could have heard a pin drop when I said: “I tried to get myself sued for defamation by telling the truth”. I told in detail of the corruption at Belfast Docks and of my accusing Jack O’Connor many times of being corrupt and of covering up corruption – and of his promise to “sue the arse of me”, but, much to my disapointment that he’d had a change of mind when his Belfast solicitor John O’Neill of Thompson McClures informed him that what I said about his Union was indeed true.
To be fair Judge Peter Kelly gave me a lot of leeway, then he interupted asking, “Do you have a question for the panel”? I replied I did, and it was for Geraldine Kennedy, who was then editor of Irish Times. I asked her the same question I’d asked Fintan O’Toole two days previously – “why will you nor Irish Times report on the Dying Belfast Dockers”. She was dumbfounded and silence descended on the hall. Foolishly, instead of letting her stew I gave her an out by telling what had happened with Fintan O’Toole. She replied: “I haven’t seen or spoken to Fintan and cannot comment until I have, but, we must always remain within the law.
Daithi, why will no-one from the pantheon of highly educated Human Rights Greats in Dublin and Belfast revel why Human Rights are denied to ex Belfast Dockers? For the life of me this is something I cannot understand.
Monica McWilliams when still with NIHRC would not investigate Belfast Dockers dying from Asbestosis – INCREDULOUSLY , she said: “because the Trade Union which ordered them to discharge this deadly material without protection – was and still is based in Dublin”. AND to add insult to injury, Maurice Manning of the IHRC would not investigate because – LUDICROUSLY, he says that “the matters complained happened in NI which is outside the jurisdiction of IHRC”. Anyone with half an eye can see that another agenda is at work here.

Daithi, lets here you comment on this corruption – after you’ve checked it out of course – OR are you as deaf, dumb and blind as Michael Farrell, the above mentioned, Noeline Blackwell and a host of other Human Rights pretenders.